NPT enters final week: High Stakes, Disarmament and Middle East

The second phase of the NPT Review Conference has come to an end. None of the reports has been adopted by consensus as there are still a handful of outstanding areas of disagreement and certain delegations are holding onto their national positions for as long as they possibly can. The current drafts from the Main Committees represent forward movement from 2000 on most but not all issues, and the evidence of significant convergence demonstrates that the review conference has a real chance of being able to adopt a constructively useful (if not fabulously forward-looking) outcome. How much is enough? The next week will decide.

Below I discuss the most recent draft on nuclear disarmament in more detail and conclude that though much of what the non-nuclear-weapon states and civil society have nationally and collectively advocated has been watered down, the current draft is a sufficient step forward from 2000 to be worthy of our active support. In view of the critical importance of Action 6 to this assessment, those seeking a successful outcome should beware of exerting further pressure as that could upset the careful balance of the current draft and may jeopardise agreement on and support for the Conference outcome as a whole.

The Chair of Subsidiary Body 2 on regional issues including the 1995 resolution on the Middle East, Alison Kelly (Ireland), circulated her first draft report at midday on Friday, after two weeks of intense consultations and a pile of detailed demands in the statements and working papers of many of the countries in the region, as well as the League of Arab States and Non-Aligned Movement (NAM), headed by Egypt. As discussed below, this has been warmly welcomed by the relevant interlocutors, though with caution embedded in phrases such as “good basis” but “not quite there”.

The conference is still awaiting a draft from Subsidiary Body 3 on institutional issues and withdrawal from the treaty. Last week it was reported that smaller sub-group negotiations were held with the hope of overcoming some serious differences of view over whether and how to respond to notifications of withdrawal and strengthen the NPT’s governance powers and the implementation capabilities and accountability mechanisms to enable states parties to fulfill their obligations more effectively.

Finally, Daryl Kimball of the Washington-based Arms Control Association has provided more insight into why the UN Security Council was asked last Tuesday to consider a sanctions resolution on Iran so soon after the Brazilian-Turkish nuclear fuel swap agreement with Iran’s President Ahmadinejad. In particular, he notes that far from being a hostile reaction to that initiative, which was adopted a day earlier, on May 17, the timing of US Secretary of State Hillary Clinton’s announcement is attributable to the Obama administration’s ongoing effort to forestall US Congressional attempts to impose unilateral US sanctions on Iran in accordance with two versions of legislation that have passed the House and Senate respectively. The US administration is concerned that unilateral sanctions would complicate diplomatic strategies to engage Iran over suspending its uranium enrichment programme until it has been able to satisfy all outstanding questions regarding its nuclear programme and compliance with IAEA safeguards requirements.

Crunch time

At a plenary convened after 5.00 pm Friday, the Conference president, Ambassador Libran Cabactulan (Philippines) reminded the crowded room of the “limited time, enormity of task, and collective desire to have a successful conference” and called on the delegations to “continue to demonstrate the goodwill, flexibility and constructive spirit that has characterised the review conference”. Underlining that “the stakes are high”, he urged them to use the weekend for consulting with capitals, with the understanding that private talks will also take place among some of the principal adversaries on the remaining issues. He issued a draft work programme for the final day, explaining that the Committees would have an extra day – Monday – for final negotiations, following which he would take whatever they gave him and bring his proposals to a plenary on Tuesday.

Before he could bring the gavel down, Iran asks for the floor to propose slowing the process down. Starting with assurances of Iran’s intention to “cooperate with the President to obtain the common objective of the conference”, Iran complains that “setting an artificial deadline for the end of Committees’ work would not be helpful” and argues that the Committees should be given at least two more days. Nigeria immediately wades in to agree with Iran and suggest that Tuesday should be allocated for Committee work, which would set Cabactulan’s timetable back a crucial 24 hours.

Algeria and Chile speak in support of the president, then Cuba… and suddenly there are a dozen name plates up. Cabactulan suspends the meeting, which breaks into little knots of people talking about the challenge to the President.

From a completely unofficial tally, the majority appeared to consider that the key issues are known and that once instructions are obtained and a few more private meetings between critical protagonists are undertaken over the weekend, what cannot be agreed by the end of Monday is unlikely to get agreed with another day in committee. There is general recognition that Cabactulan will need to have a strategy to pull together what he receives from the committees and resolve what they hope will be only a small number of disagreements, and most want to give that endgame phase of the conference negotiations time to get worked out. Ten minutes later, Cabactulan called the meeting to order and reaffirmed his request for the committees to deliver him their maximum possible products by 6.00 pm Monday. Apologising for dismissing the lengthening speakers’ list, he promised that he and his team would work to the max to draw these together and make proposals which could either be picked up at midnight from the Philippines’ UN Mission or from the Conference on Tuesday morning. He asked if there were any objections and tapped the gavel down. It all happened so quickly: there was a moment of stunned silence and then chuckles could be heard from all sides of the room.

The combination of decisiveness and humour appeared to have worked. As the diplomats exited, they seemed relieved. Iran’s argument was mostly dismissed as a delaying tactic, and though the President still retained the option of prolonging committee work if by the end of Monday he assessed that a little more time in one or more of the committees would deliver a consensus outcome, the prevailing view was that Cabactulan was right to set Monday as the deadline and to move towards the endgame, which is likely to have a number of hurdles.

Ambassador Cabactulan is not the only one to realise that this is crunch time, with just a week to go. States and civil society need to assess: Are the reports good enough to go the extra mile and cooperate to bring about a successful review conference? Does the current language contain enough in terms of commitments, intentions and coded understandings to make this more than a paper exercise? The various efforts by chairs to capture the best possible agreements have resulted in drafts going backwards and forwards seeking the optimum zone of potential convergence. What a relief that they have not become bogged down in the deadly processes of yesteryear, negotiating square-bracketed text and punctuation embedded in excruciatingly long rolling texts in which the distinctions between political positions get lost in turf battles!

It is now that decisions on the remaining key issues must be made, and delegations have to judge whether holding out on certain issues is likely to bring better or weaker results. What would be the consequences if this – generally constructive and collegial – review conference were to fail at the final hurdle? In 2005 the failure of the review conference was practically fore-ordained by the parlous political environment, but 2010 would have no such excuse. We are entering the endgame, and the stakes are indeed high.

Nuclear disarmament

Focusing on the May 21 draft of the MC1 report on nuclear disarmament report, is this a rollback or a forward movement from 2000? The proposals from the nuclear-free governments were aimed at moving the disarmament process up a significant notch. Unlike in 2000, they also had to take into account the lack of serious progress on most if not all the 2000 agreements and steps until the pressure came on again in the last 12 months before this 2010 Review Conference. From 14 to 21 May, there have been three drafts, swinging back and forth like a pendulum to find the optimum zone of agreement. Every time a draft comes out, several states – notably the NAM and some if not all the P-5 nuclear-weapons states – put forward many amendments, which the Chairs have to sift and try to balance off.

Much of what the non-nuclear-weapon states and civil society have nationally and collectively advocated has been watered down or even omitted. Yet looking at the overall picture, I think the current draft is a sufficient step forward from 2000 to be worthy of our support. Action 6 is critical to this assessment. If it is weakened further due to pressure from the nuclear-weapon states, that could jeopardise agreement on and support for the Conference outcome as a whole.

The consolidated MC1 draft (with SB1 action plan incorporated) that was issued on 21 May demonstrates a number of ways in which opposition from some if not all the nuclear weapon states has weakened the disarmament commitment. Gone are the specific mentions in the first draft to ballistic missiles equipped with conventional warheads (concerns voiced by China and Russia over the US ‘Prompt Global Strike’ plan) and that the interrelationship between strategic offensive and strategic defensive arms (missile defence) will become more important as strategic nuclear weapons are reduced, and nuclear disarmament in a time-bound framework, as advocated by the NAM. Even so, there is much in the Action Plan to encourage further actions, including strong language on the CTBT, encouragement with regard to START and further undertakings to reduce and eliminate all types of nuclear weapons, the need to further diminish the role and significance of nuclear weapons in security concepts, doctrines and policies, to address nuclear weapons on the territories of non-nuclear countries and to discuss declaratory policies, reduce the operational status of nuclear weapons systems and reduce the risk of accidental or unauthorised use (code for de-alerting) and enhance transparency.

As far as the P-5 are concerned, the following appear to be the major sticking points: China doesn’t like the current language in Action 18 which calls on all nuclear weapon states to “uphold or consider declaring a moratorium” pending conclusion of a fissile materials treaty. Of the P-5, only China has failed to declare a moratorium on producing fissile materials for weapons purposes, although it is widely believed to have actually stopped such production some years ago. Russia is determined to keep explicit reference to non-strategic nuclear weapons out but would accept general language relating to the need to reduce and eliminate all types of nuclear weapons, as in the current MC1 draft. The United States doesn’t want language committing to negotiate legally binding security assurances, but is believed to be willing to accept something that notes calls by non-nuclear-weapon states for legally binding negative security assurances. Though France has indicated directly that it would be willing to accept the current text as is, it is reported by other P-5 as wanting a few further amendments, so we await clarification. Britain has signaled that it considers the current MC1 text to be acceptable (or very close).

Amid reports that Britain, China and Russia will accept the language in the current draft that relates to the UN Secretary General’s five point disarmament plan and references a nuclear weapons convention, there are conflicting reports on the positions of the United States and France. The NAM and others are determined to keep this language in as they have seen their more specific proposals for a timebound framework on disarmament taken out at the insistence of the nuclear-weapon states. A senior P-5 representative indicated that all P-5 would now be willing to accept the compromise language on this as long as there are no commitments to a specific timetable for accomplishing disarmament, but we have not been able to obtain confirmation on this.

At this stage the nuclear powers have a choice. If they keep trying to whittle away at what is already a compromise text in which the nuclear-free countries are being expected to accept much less than they originally put forward in their national and group statements and working papers, they risk losing the goodwill of the Conference, which they will need in this final week to get a consensus outcome. The non-nuclear weapon states, for their part, will probably have to acknowledge that this is by no means all that they hoped for, but if adopted it could provide a stepping stone to achieve more progress on nuclear disarmament by 2015.

Regional Issues

The Chair of Subsidiary Body 2 on regional issues including the 1995 resolution on the Middle East, Alison Kelly (Ireland) circulated her first draft report at midday today (Friday) after two weeks of intense consultations and a pile of detailed demands in the statements and working papers of many of the countries in the region, as well as the League of Arab States. Coincidentally, the paper came out at the same time as a lunchtime meeting hosted by Greenpeace Israel and attended by ambassadors and other senior diplomats from NPT parties from the Middle East region, which discussed how to engage Israel to see a zone free of nuclear and other weapons of mass destruction as in its security interests and take cooperative regional and international steps towards this goal.

Kelly’s draft report is carefully crafted to provide substantive commitments to move forwards on three relevant areas: the Middle East, South Asia and North Korea. Though all are important, the most political energy here was expended on the Middle East, particularly in view of the detailed, practical proposals Egypt and the Arab States put on the table during the preparatory process for this review conference, notably for a regional Conference and a special coordinator to facilitate practical progress, which were reflected in all three versions of the 2009 PrepCom Chair’s draft report (though none of these was actually adopted). These have had to be parlayed with the close US political alliance with Israel, which is widely believed to have some 60-180 nuclear weapons, and its concerns that Iran’s nuclear programme is intended to provide future weapons capabilities or options.

Middle East

This draft recognises the critical importance of the 1995 Resolution on the Middle East, notes the P-5 statement’s commitment to its full implementation, and regrets there has been so little progress. The following practical steps are endorsed: an “initial conference” in 2012 convened by the UN Secretary-General and involving all states in the Middle East, and a Special Coordinator with a mandate to facilitate implementation of the 1995 Resolution, conduct consultations and undertake preparations for the Conference and, importantly, “follow-on steps”, with reports to be provided to NPT states parties at the 2012, 2013 and 2014 PrepComs. The draft seeks a middle way between the Arab states’ desire for a negotiating conference and the US view that this would be premature, by describing the purpose of the Conference as “leading to the establishment of a Middle East zone free of nuclear weapons and all other weapons of mass destruction, on the basis of arrangements freely arrived at by the States of the region…” In addition to recognising the importance of the draft proposed “complementary steps” such as an EU-hosted event and background documentation regarding verification. It also emphasises the importance of “parallel progress, in substance and timing” relating to achieving total and complete elimination of all nuclear, chemical and biological weapons from the region.

The draft seeks a constructive way out of the problems raised by naming Iran and Israel, but whether its formula will be accepted by all sides remains to be seen. Briefly, the US has argued that Iran’s noncompliance should be recorded, while Iran has been vigorous in complaining that this would be inappropriate. Iran and the Arab States have similarly insisted that Israel should be castigated by name, which the US is generally reluctant to allow. The draft proposes employing language from the 2000 Review Conference to reaffirm “the importance of Israel’s accession” to the NPT and placement of all its nuclear facilities under comprehensive IAEA safeguards. A further paragraph underscores the necessity of strict adherence and compliance with the Treaty by all states parties, who are enjoined to “refrain from undertaking any measures that preclude the achievement” of the objectives of the 1995 Resolution.

The initial response to Kelly’s draft was positive. In guarded responses, both sides have characterised it as a good, balanced effort, but have indicated that they intend to keep pushing to get their own demands met. While no-one is expecting them to agree this compromise with five days to go, the truth is that everyone else seems to consider this a positive compromise with incremental and practical ways to make progress. After cooking behind closed doors, an achievable deal is now out in the open. It will be interesting to see what counter proposals emerge on Monday. If either side pushes too hard or for too much longer, they risk losing the lot.

North Korea

With the Democratic People’s Republic of Korea (DPRK) not present at the Review Conference following its decision to withdraw from the NPT in 2003, the three paras condemn the nuclear tests conducted by North Korea in 2006 and 2009 and give “firm support” to the Six Party Talks, involving China, Japan, Russia, South Korea and the United States as well as the DPRK, and to resolve nuclear problems “through diplomatic means”. North Korea is urged to fulfill its commitments, including completely and verifiably abandoning all its nuclear weapons “and existing nuclear programmes”, and to “return, at an early date,” to the NPT and IAEA safeguards – carefully worded to avoid taking a position on the legality of North Korea’s withdrawal from the NPT and IAEA safeguards, a question over which there is much disagreement.

South Asia

The draft has one brief paragraph urging India and Pakistan to accede to the NPT as non-nuclear weapons states. There is no mention of the highly controversial nuclear deal that the Bush administration brokered with India and pushed through the Nuclear Suppliers Group (NSG). The draft simply urges both states to “strengthen their non-proliferation export control measures over technologies, material and equipment that can be used for the production of nuclear weapons and their delivery systems”. Though a number of delegates have complained that the Indo-US deal weakened the NSG and undermined the NPT, public criticism at this Conference has been muted. While the deal with India is now regarded as a fait accompli, however, the warnings against extending similar arrangements to Israel or Pakistan have been unmistakeable.

Iran Sanctions

The timing of the tabling on Tuesday of a draft UN Security Council resolution intended to impose further sanctions on Iran regarding its nuclear activities seemed to take the NPT delegations by surprise, as reported in Acronym’s blog of May 18. Even some P-5 delegates expressed consternation, though they acknowledged that their negotiators in Washington had agreed a draft text on Friday, which had been sent to capitals. The haste with which in principle agreement on a draft was followed by the tabling of the resolution in the Security Council was worryingly viewed as Washington’s ‘answer’ to the fuel swap deal involving low-enriched uranium (LEU) that Brazil and Turkey had brokered with Iran, which was signed by the three heads of states in Tehran a day earlier, on May 17.

US Secretary of State Hillary Clinton’s decision to announce the sanctions resolution when speaking to the Senate Foreign Relations Committee about ratification of the New START treaty also gave rise to misunderstandings. According to Arms Control Association’s director Daryl Kimball, the announcement was not linked to START ratification, but to attempts by the Obama administration to forestall Congressional approval for legislation that would impose national, unilateral sanctions on Iran, which Clinton feared might be boosted by news of the fuel swap deal.

In late April 2010, a group of House and Senate members were appointed to resolve differences between legislation already approved by each chamber that would sanction foreign companies that provide gasoline to Iran. 28 May was the target date set by Congressional leaders to complete work on resolving differences in the House and Senate versions of the legislation, after which it would be sent to President Obama’s desk. The legislation has to date been approved by large, veto-proof majorities in the House and Senate.

The basis of this Congressional initiative is a US law adopted in 1996 that imposes penalties on foreign firms that invest more than $20 million in Iran’s energy sector. The House and Senate versions of the pending legislation are intended to expand those penalties to firms that provide Iran with refined petroleum or assist in expanding its refining capacity. The Senate bill includes a number of additional measures to target Iran’s financial sector and enhance export controls in countries at risk of diverting sensitive materials and technologies to Iran. House and Senate members sent letters to Obama in April urging the administration to carry out sanctions under current US law. Two nearly identical letters signed by 363 representatives and 81 senators urged the President “to move rapidly to implement your existing authority on Iran and the legislation we send you, and to galvanize the international community” for immediate steps against Iran.

Although the US law targeting energy investment in Iran has been in effect since 1996, no firms have been sanctioned to date. Since the 1996 bill’s passage, US administrations have preferred to seek international cooperation to exert pressure on Iran. Obama Administration officials have made clear their preference for pursuing multilateral initiatives, including Security Council sanctions before applying unilateral measures. Undersecretary of Defense for Policy Michèle Flournoy told a Senate panel on April 14. “There are steps that we can take unilaterally, and we have taken unilaterally. But our judgment is that if we really want to impose pressure on Iran that actually affects their calculus, the only way to be effective is to do that multilaterally”. See http://www.armscontrol.org/act/2010_05/IranSanctions for more details.

In Kimball’s analysis, Clinton’s announcement on the sanctions resolution was a response to the US Congress at least as much if not more than a reaction to the Brazilian-Turkish initiative to arrange a fuel swap deal with Iran. News reports out of Washington yesterday suggest that Congressional action on the US sanctions legislation has already been delayed. Current indications are that the Security Council will not be hurrying to agree on a sanctions resolution before the NPT ends, and that governments will be watching closely to see how the fuel swap deal is implemented.

HUMANITY IS LEGAL
In its Article 7, the treaty establishing the International Criminal Court in 2003 provides:
For the purpose of this Statute, “crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; … [1]
The Statute of the International Criminal Court thereby cites “Enemies of humanity” as criminals subject to indictment and punishment if convicted. If then a crime can be ascribed wherein humanity as such is the defendant, then humanity per se has been accorded legitimacy. In short, humanity has been declared “legal” and no longer merely a tangible fact. Otherwise there could not be a legal “enemy” of a non-legal “fiction.”1

Humanity, however, needs no defense. Can a human, member of humanity, then be accused of being humanity’s “enemy”? Should the alleged “enemy” succeed in “exterminating” humanity, he/she would likewise be exterminated. When total holocaust is the “crime,” law itself has thus reached its ultimate contradiction.2*

There is now incontrovertible evidence that humanity is a species. Its genetic code is common to all humans. Thus humanity has heretofore been defined as merely a tangible “fact.” The first article of the Universal Declaration of Human Rights, however, affirms that “All human beings are born free and equal in dignity and rights…” In that the sum total of humans by definition constitute humanity, it follows that humanity itself must enjoy “dignity and rights.”

Also, by inference, life itself

Thus the ICC connotes a legality to humanity as such. In other words, if “humanity” can be a “plaintiff” in a court of law, then it is legal. The obvious contrary to this statement is: Humanity is illegal, or “non” legal: a non sequitur.

In that humanity is composed of humans, the legality of humans per se when allied politically to humanity are likewise globally legal. The fundamental right of political choice by individual humans sanctioned by article 15(2) of the UDHR further legitimizes the individual when claiming world citizenship.3

The security of humanity obviously supersedes the alleged “security” of nations for if humanity is exterminated, nations would cease to exist. Their fictional character while supportive of the anarchistic state between them thus depends on humanity’s de facto existence. As of August 6, 1945, however, totally threatened by the nuclear option, a now legal humanity by definition annuls that heretofore anarchistic state which dominated the world community prior to that date.

Following the inescapable logic of humanity’s legitimacy, each and every human claiming world citizenship, as a legitimate “member” of humanity, is likewise legitimate as such. That fundamental claim is sanctioned by the “freedom of choice” article in the UDHR (15,2) as well as article 21(3)4 not to mention most national constitutions re the origin of their authority.

The link therefore binding all world citizens one to another as well as to humanity is by legal definition, world law.5

Finally, the only government founded on humanity’s fundamental legitimacy – along with humanity’s home planet, Earth, AND the conceptual nature of the species -Evelyn Lindner calls it “tough love” – is the World Government of World Citizens founded September 4, 1953 from the City Hall of Ellsworth, Maine.6

Garry Davis, World Coordinator, World Government of World Citizens
August 6, 2010
1 The atomic bombings of Hiroshima and Nagasaki constituted crimes against humanity and war crimes as defined by the Nuremberg Charter of August 8, 1945, and violated several basic provisions of the Regulations annexed to Hague Convention No. 4 Respecting the Laws and Customs of War on Land (1907), the rules of customary international law set forth in the Draft Hague Rules of Air Warfare (1923), and the United States War Department Field Manual 27-10, Rules of Land Warfare (1940).
The use of nuclear weapons in combat was, and still is, absolutely prohibited under all circumstances by both conventional and customary international law: e.g., the Nuremberg Principles, the Hague Regulations of 1907, the International Convention on the Prevention and Punishment of the Crime of Genocide of 1948, the Four Geneva Conventions of 1949 and their Additional Protocol I of 1977, etc. In addition, the use of nuclear weapons would also specifically violate several fundamental resolutions of the United Nations General Assembly that have repeatedly condemned the use of nuclear weapons as an international crime.
Consequently, according to the Nuremberg Judgment, soldiers would be obliged to disobey egregiously illegal orders with respect to launching and waging a nuclear war. Second, all government officials and military officers who might nevertheless launch or wage a nuclear war would be personally responsible for the commission of Nuremberg crimes against peace, crimes against humanity, war crimes, grave breaches of the Geneva Conventions and Protocol 1, and genocide, among other international crimes. Third, such individuals would not be entitled to the defenses of superior orders, act of state, tu quoque, self-defense, presidential authority, etc. Fourth, such individuals could thus be quite legitimately and most severely punished as war criminals, up to and including the imposition of the death penalty, without limitation of time.

2 See Judge Weeramantry’s opinion at the WHO : “Weapons of warfare which can kill a million or a billion human beings (according to the estimates placed before the Court) show scant regard for the dignity and worth of the human person, or for the principle of good neighborliness. They stand condemned upon the principles laid down by the Court.” (Excerpt)
3 “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”
4 “The will of the people shall be the basis of the authority of government…”
5 “Everyone has the right to recognition everywhere as a person before the law.” Art. 6, UDHR
6 See http://www.worldservice.org/ells.html